A Few Tips to Reduce H-1B Scrutiny

The USCIS often looks for certain things that could trigger an in-depth review of a H-1B petition.  Here are some of tips that will reduce extra scrutiny of a company’s H-1B petitions.

Whenever possible, don’t decrease the wage level on the Labor Condition Application (LCA) for an H-1B extension. For example, going from a wage level 3 in the initial petition to a wage level 2 in the extension. It is important to remember that the Department of Labor (DOL) assigns H1B wage levels based on the level of experience in a particular location. The employee’s experience should have increased, not decreased between the initial filing and the extension. A reduction in wage level on the LCA without any change in stated experience or work location may suggest that the employer is intentionally underpaying its H-1B employees.

While it is not mandated by USCIS, employers should follow all Fair Labor Standards Act (FLSA) regulations. As a rule, a reduction of an exempt employee’s weekly salary violates the FLSA, with some exceptions.  An exempt employee’s salary should not be reduced because a third-party client cannot be billed for time not worked for situations such as a holiday or jury duty.

If an H-1B employee is working at a third-party work location, the minimum requirements stated in LCA and petition support letter should reflect the petitioning employer’s requirements, not the end-client’s requirements. Also, in cases where the H-1B employee works at a third party’s location, the work location address in the LCA should indicate the third party’s address and not the employer’s address.

A company must comply with the four attestations found in the LCA. The four attestations are as follows:

(1) Wages: The employer shall pay nonimmigrant workers at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. The employer shall offer nonimmigrant workers benefits and eligibility for benefits provided as compensation for services on the same basis as the employer offers to U.S. workers. The employer shall not make deductions to recoup a business expense(s) of the employer including attorney fees and other costs connected to the performance of H-1B, H-1B1, or E-3 program functions which are required to be performed by the employer. This includes expenses related to the preparation and filing of this LCA and related visa petition information.

(2) Working Conditions: The employer shall provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed. The employer’s obligation regarding working conditions shall extend for the duration of the validity period of the certified LCA or the period during which the worker(s) working pursuant to this LCA is employed by the employer, whichever is longer.

(3) Strike, Lockout, or Work Stoppage: At the time of filing the LCA, the employer is not involved in a strike, lockout, or work stoppage during a labor dispute in the occupational classification in the area(s) of intended employment. The employer will notify the Department of Labor within 3 days of the occurrence of a strike or lockout in the occupation, and in that event the LCA will not be used to support a petition filing with the U.S. Citizenship and Immigration Services (USCIS) until the DOL Employment and Training Administration (ETA) determines that the strike or lockout has ended.

(4) Notice: Notice of the LCA filing was provided no more than 30 days before the filing of this LCA or will be provided on the day this LCA is filed to the bargaining representative in the occupation and area of intended employment, or if there is no bargaining representative, to workers in the occupation at the place(s) of employment either by electronic or physical posting. This notice was or will be posted for a total period of 10 days, except that if employees are provided individual direct notice by e-mail, notification need only be given once. A copy of the notice documentation will be maintained in the employer’s public access file. A copy of this LCA will be provided to each nonimmigrant worker employed pursuant to the LCA. The employer shall, no later than the date the worker(s) report to work at the place(s) of employment, provide a signed copy of the certified LCA to the worker(s) working pursuant to this LCA.

When you sign the LCA, you are declaring under the penalty of perjury that you have read and reviewed it, and to the best of your knowledge, the information in the LCA is true and accurate. You also confirm that you understand that to knowingly furnish false information in the preparation of the LCA form and any supplemental documents or to aid, abet, or counsel another to do so is a violation of federal law.

At Bashyam Global Immigration Law Group, we encourage our clients to have an honest and open dialogue with us, so we can provide advice to reduce the risk of extra-governmental scrutiny on H-1B petitions. When sponsoring foreign workers, employers must understand their legal obligations.  Please contact us if you have any questions about ensuring that you are meeting your obligations.